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COMEGNO
lAV\l GPOUF',

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521

TAYLOR RUILOVA, ESQUIRE

MEMBER NJ AND PA BARS

PLEASANT VALLEY AVENUE

MOORESTOWN, NJ 08057
888.313.4332
856.234.4114
856.234.4262

November 11,2016

FAX

COMEGNOLAW.COM

VIA FEDERAL EXPRESS

Clerk of the Court
Gloucester County Superior Court
1 North Broad Street
Woodbury, New Jersey 08096
RE:

Peter M. Heimlich v. Educational Information & Resource Center ("EIRe")

Stephen H. Hoffman, in his capacity as Custodian of Records for the EIRC
Docket No.: GLO-L-799-16

and

Dear Sir/Madam:
As you may recall, our office represents the Defendants, the EIRC and Stephen H. Hoffman, in
his capacity as Custodian of Records for the EIRC ("Defendants"). in connection with the above
referenced matter.
Enclosed please find an original and two (2) copies of Defendants' Notice of Motion for
Reconsideration of the October 24,2016 Order; Letter Brief in support of Defendants' Notice of
Motion for Reconsideration; Certification of Brandon R. Croker, Esquire in support of
Defendants' Notice of Motion for Reconsideration; Certification of Filing and Service; and
proposed Form of Order.
Kindly file the enclosed documents and return stamped "filed" copies to our office in the
enclosed self-addressed stamped envelope provided for your convenience. Please charge our
firm's attorney collateral account number 142082 for the applicable filing fee.
Should the Court have any questions, please do not hesitate to contact me.

RTRlBRC
Ene.
cc:
Honorable Georgia M. Curio, AJ.S.C. (via federal express, w/enc.)
CJ Griffin, Esquire (via federal express, w/enc.)
David Lindenmuth, EIRC Executive Director (via email)

r:

COMEGNO LAW GROUP, P.c.

521 Pleasant Valley Avenue
Moorestown, New Jersey 08057
856.234.4114 (p)
856.234.4262 (f)
Attorneys for Defendants, Educational Information & Resource Center and Stephen H. Hoffman,
in his capacity as Custodian of Records for the Educational Information & Resource Center
BY:

R. TAYLOR RUILOVA, ESQUIRE (NJ Attorney ID: 039892006)

BRANDON R. CROKER, ESQUIRE (N] Attorney ID: 017902013)
I

PETER M. HEIMLICH,

II

SUPERIOR COURT OF NEW JERSEY

GLOUCESTER COUNTY
LAW DIVISION, CIVIL PART

,
I

Plaintiff,

II

v.

EDUCATIONAL INFORMATION &

RESOURCE CENTER and STEPHEN H.
HOFFMAN, in his capacity as Custodian of
Records for the Educational Information &.
Resource Center,

DOCKET NO.: GLO-L-779-16

iI

i
I

NOTICE OF MOTION FOR

RECONSIDERATION OF THE
OCTOBER 24, 2016 ORDER

.1

I
Defendants.
J

CJ Griffin, Esquire
Pasbman Stein Walder Hayden
A Professional Corporation
Court Plaza South
21 Main Street, Suite 200
Hackensack, NJ 07601

COUNSEL:
PLEASE TAKE NOTICE that on the 2nd day of December, 2016 at 9:00 A.M., or as
soon thereafter as counsel may be heard, the undersigned attorneys for Defendants, the
Educational Information & Resource Center (the "EIRC"), and Stephen H. Hoffman, in his
capacity as the former Custodian of Records for the EIRe ("Mr. Hoffman") (EIRC and Mr.
Hoffman collectively, "Defendants"), shall apply by way of a Motion to the Honorable Georgia

M. Curio, A.J.S.C., New Jersey Superior Court, Gloucester County, Law Division, for entry of
an Order, 1) granting Defendants'

Motion for Reconsideration

Order finding Plaintiff, Peter M. Heimlich ("Plaintiff'),

of the attached October 24,2016

had standing to submit an OPRA request

despite his lack of New Jersey citizenship.

PLEASE TAKE PROPER NOTICE that in support of this Motion, Plaintiff shall rely
upon the enclosed Certification

of Brandon R. Croker, Esquire and Letter Brief submitted

herewith.

PLEASE TAKE FURTHER NOTICE that pursuant to R. 1:6-2(d), Plaintiff waives

oral argument and consents to disposition on the papers unless timely opposition is filed or this
Court requires oral argument.

PLEASE TAKE FURTHER NOTICE that this Motion shall be deemed uncontested
unless responsive papers are timely filed and served stating with particularity the basis of the
opposition to the relief sought.

PLEASE TAKE FURTHER NOTICE that a proposed form of Order is submitted

herewith.
COMEGNO LAW GROUP, P.C.
Attorneys for Defendants, Educational Information
& Resource Center and Stephen H. Hoffman, in his
capacity as Custodian of Records for the
Educational Information & Resource Center

By: ~~--------BRANDON R. CROKER, ESQUIRE

Dated: November 11, 2016

[b
COMEGNO
LP,W GROUP, P.C.

521

R. TAYLOR RUILOVA, ESQUIRE

PLEASANT VALLEY AVENUE

MOORESTOWN. N-.J 08057

MEMBER NJ AND PA BARS

888.313.4332
856.234.4114
856.234.4262

FAX

COMEGNOLAW.COM

November 11,2016
VIA FEDERAL

EXPRESS

Honorable Georgia M. Curio, A.l.S.C.

Gloucester County Superior Court
1 North Broad Street
Woodbury, New Jersey 08096
RE:

Peter M. Heimlich v. Educational Information

& Resource Center ("EIRC") and
Stephen H. Hoffman. in his capacity as Custodian of Records for the EIRC
Docket No.: GLO-L-799-16
Letter Brief in Support of Motion for Reconsideration of October 24, 2016 Order

Dear Judge Curio:

As Your Honor will recall, our office represents the Defendants, the Educational Information &
Resource Center and Stephen H. Hoffman, in his capacity as the former Custodian of Records for
EIRCI (EIRC and Mr. Hoffman collectively, "Defendants"), in connection with the above
referenced litigation commenced by Plaintiff, Peter M. Heimlich ("Plaintiff"). Please accept this
letter brief in lieu of a more formal submission in support of Defendants' Motion for
Reconsideration of the October 24,2016, Order ("Order") finding Plaintiffhad standing to submit
a request under the Open Public Records Act, N.J.S.A. 47:1A-l et. seq. ("OPRA"), despite his
lack of New Jersey citizenship.
PROCEDURAL

HISTORY

On or about July 8, 2016, Plaintiff filed a Verified Complaint ("Complaint") and an Order to Show
Cause ("OTSC") concerning the Defendants' denial of Plaintiff's request under OPRA given his
lack of New Jersey citizenship. Plaintiff served Defendants with the Complaint and OTSC under
cover of letter dated July 14,2016. The matter was initially marked returnable on September 1,
2016, but the return date was later adjourned to October 13,2016. Defendants filed responsive
papers to Plaintiff's Complaint and OTSC on August 17, 2016, pursuant to the original filing
deadlines established by Your Honor in the OTSC, but prior to receiving notice that the OTSC
hearing and associated filing deadlines had been adjourned. On or about October 3,2016, Plaintiff
1 As noted in Defendants'
initial letter brief, although Mr. Hoffman was the EIRC Custodian of Records at all times
relevant to the instant matter, he has since retired from his employment with EIRC.

Honorable Georgia M. Curio, A.J.S.c.

Peter M. Heimlich v. EIRC and Stephen H. Hoffman
Docket No.: GLO-L-799-16
November 11, 2016
Page 2

filed a reply. The Court entertained oral argument on October 13,2016 and entered the Order on
October 24, 2016. See Certification of Brandon R. Croker, Esquire in Support of Defendants'
Notice of Motion for Reconsideration of the October 24,2016 Order ("Croker Cert."), ,-r 2, Ex. A.
Plaintiffs sent same to Defendants, through counsel, on October 28, 2016. It is the October 24,
2016 Order which Defendants respectfully request the Court reconsider and reverse.

FACTUAL BACKGROUND
In the interest of brevity, the Defendants rely on the Factual Background set forth in Defendant's
initial letter brief in connection with the OTSC dated August 17, 2016. See Croker Cert., ,-r 3, Ex.

B.
LEGAL ARGUMENT
The decision whether to grant a motion for reconsideration is "a matter within the sound discretion
of the Court, to be exercised in the interest of justice." D' Atria v. D' Atria, 242 N.J. Super. 392,
401 (Ch. Div. 1990) (citations omitted). The Appellate Division has held that it is appropriate to
grant a motion for reconsideration when the court's decision is based on "incorrect reasoning or
when the court failed to consider evidence or there is good reason for it to reconsider new
information." Cummings v. Bahr, 295 N.J. Super. 374, 384-85 (App. Div. 1996).
Within Defendants' initial responsive papers, and during oral argument, Defendants argued
Plaintiff did not have standing to submit an OPRA request given his lack of New Jersey citizenship.
However, the Court disagreed, verbally noting during oral argument the lack of any binding
authority on the issue and further opining the current state of the law was somewhat ambiguous
given the numerous conflicting cases issued by other New Jersey Superior Court Judges over the
past year. The Court further explained it considered the non-binding guidance from the
Government Records Council ("GRC") originally suggesting New Jersey citizenship was not
required to submit an OPRA request.
Interestingly, the GRC just issued its September 29, 2016 Final Decision in Harry B. Scheeler, Jr.
v. Burlington Township, Complaint No. 2015-93, which was distributed on October 4, 2016
("Scheeler v. Burlington Township"). See Croker Cert., ~ 4, Ex. C. The Scheeler v. Burlington
Township decision was not made available until October 4,2016, well after Defendants filed their
responsive papers on August 18, 2016. Defendants were not aware of these two important
decisions at the time of oral argument in this matter, but submit that they are of crucial importance
with regard to the decision made in the instant matter as they substantially change the basis upon
with that decision was based.
Within Scheeler v. Burlington Township, the GRC changed its position, nullified its previous nonbinding guidance, and clarified, with no ambiguity, that it is proper to deny access to records under
OPRA to out-of-state requestors.
In that regard, the GRC's Final Decision in Scheeler v.

Honorable Georgia M. Curio, A.J.S.C.

Peter M. Heimlich v. EIRC and Stephen H. Hoffman
Docket No.: GLO-L-799-16
November 11,2016
Page 3

Burlington Township explained the GRC "f[ound] that the Custodian hard] met his burden of
proof that he lawfully denied access to the Complainant's
OPRA reguest[,]" explaining
"[tlhe Complainant [could] not request records under OPRA because he [was] not a citizen
of New Jersey."
The Executive Director of the GRC also issued the following relevant findings and
recommendations, which the GRC unanimously adopted, further explaining the basis of the GRC's
Final Decision in Scheeler v. Burlington Township:
The issue in this matter is whether N.1.S.A. 47:1A-llimits OPRA access to citizens
of New Jersey. Specifically, the GRC must decide whether the phrase "citizens of
this State" in N.J. S.A. 47: 1A-I is interpreted to exclude out-of-state requestors from
OPRA.
In S. Jersey Pub. Co. v. N.]. Expressway Auth., 124 N.J. 478,489 (1991), the New
Jersey Supreme Court held that a requestor "need only be a citizen of the State to
obtain access to public records" under the Right to Know Law ("RTKL"). The
Legislature left unchanged the relevant language in N.J.S.A. 47:1A-l when it
amended the RTKL in eriacting OPRA. N.J.S.A. 1:1-4 provides that "[rjevised
Statutes, not inconsistent with those of prior laws . . . shall be construed as a
continuation of such prior laws."
Notably, when Senators Kenny and Kyrilos introduced Senate Bill No. 351 ("S351") on January 11, 2000, the proposed Legislative findings and declarations
struck the phrase "citizens of this State" and read, in pertinent part: "the Legislature
finds and declares it to be the public policy of this State that public records shall be
readily accessible for examination by members of the public." That proposal was
intentionally made to "[broaden] the scope of public policy regarding availability
of public information to incorporate any member of the public and not just citizens.
Currently, the right to information access exits for citizens alone." NJ Assembly
State Government Committee Statement on Assembly No. 1309, p. 2 (March 6,
2000); see also Assembly Judiciary Committee Statement to Assembly No. 1309,
p. 1 (December 6, 2001). However, the Legislature did not adopt S-351. Rather, it
was Senate Bill No. 866, which stated "the Legislature finds and declares it to be
the public policy of this State that government records shall be readily accessible
for inspection, copying, or examination by the citizens of this State ... ", that
ultimately became OPRA. Moreover, in Burnett v. County of Bergen, et al., 198
N.J. 408,423 (2009), the Court found that the Legislative findings and declarations
of N.J.S.A. 47:1A-l is part of the substantive body of law, rather than a nonoperational preamble. Thus, the Legislature intended for government records to be
accessible to citizens of the State.

Honorable Georgia M. Curio, A.I.S.C.

Peter M. Heimlich v. EIRC and Stephen H. Hoffman
Docket No.: GLO-L-799-16
November 11,2016
Page 4

A plain reading ofN.l.S.A. 47:1A-l demonstrates that OPRA is intended only for
New Jersey citizens. The Supreme Court held that the precatory language in
N.J.S.A. 47:1A-I containing "citizens of this State" is part of the substantive body
of the law and not a descriptive preamble. Burnett v. Cnty. of Bergen, et al, 198
N.J. 408, 423 (2009). Moreover, even if the phrase "citizens of this State" were
ambiguous, the legislative history favors the conclusion that OPRA did not expand
access to out-of-state requestors. Therefore, the GRC finds that OPRA was
meant to apply only to the citizens of New Jersey.
Although the Complainant argues that the GRC has never held that OPRA applies
only to New Jersey citizens, "an administrative agency has no obligation to follow
a prior agency decision that incorrectly interprets a statute." Moore v. Police Ret.
Sys. Bd. ofTrs., 382 N.J. Super. 347, 359 (App. Div. 2006), rev 'd on other grounds
sub nom Patterson v. Bd. ofTrustees,194 N.J. 29 (2008). Moreover, that the GRC
expanded access on a consistent basis prior to this complaint is irrelevant to
ascertaining an accurate interpretation of the law. Evans v. Atlantic City Bd. of
Educ., 404 N.J. Super. 87, 93 n. 1 (App. Div. 2008). "The scope of [a] statute
cannot be expanded through a ... past or present lax attitude toward the legislative
mandate." Id. The GRC is also now guided by the United States Supreme Court
decision in McBurney.
The Complainant relies on the GRC's training guides and materials for custodians
to support his argument that the out-of-state requesters may avail themselves of
OPRA. Specifically, he refers to the GRC's handbook, which cites a 2002 Deputy
Attorney General ("DAG") memorandum to the GRC, interpreting N.J.S.A. 47:1A1 as not prohibiting out-of-state requestors from access to OPRA. This argument
is not persuasive because it fails to take into consideration that the DAG
memorandum was issued in 2002, several years before McBurney and the other
court decisions referenced above. Moreover, only "formal opinions" issued by the
Attorney General have precedential value. Weiner v. Cnty. of Essex, 262 N.J.
Super. 270, 281 n. 2 (Law Div. 1992) (citing Preface to Attorney General's
Opinions (1949 & 1950)). Whereas, informal Attorney General opinions and
memorandum to agencies are akin to legal advice to a client, which can be accepted
or rejected by the client. Bd. ofEduc. of West Windsor-Plainsboro Reg'l Sch. Dist.,
Mercer Cnty. v. Bd. ofEdue. ofTwp. of Delran, Burlington Cnty., 361 N.]. Super.
488,494 (App. Div. 2003).
Here, there is no evidence in the record demonstrating that the memorandum was
approved and published as a formal opinion of the Attorney General. Thus, the
GRC is not beholden to the DAG memorandum in perpetuity. "An initial agency

Honorable Georgia M. Curio, A.J.S.C.

Peter M. Heimlich v, EIRC and Stephen H. Hoffman
Docket No.: GLO-L-799-16
November 11,2016
Page 5

interpretation is not instantly carved in stone. On the contrary, the agency ... must
consider varying interpretations and the wisdom of its policy on a continuing basis."
Glukowsky v. Equity One, Inc., 180 N.J. 49, 65-66 (2004) (citing Chevron U.S.A.,
Inc. v. Natural Res. Def. Council, 467 U.S. 837, 863-64 (1984)). In light of the
relevant court decisions issued subsequent to the DAG's 2002 memorandum.
the GRC elects to reconsider its interpretation ofN.J.S.A. 47:1A-l, as set forth
above.
Therefore, the Custodian has met his burden of proof that he lawfully denied access
to the Complainant's OPRA request. N.J.S.A. 47:1A-6. The Complainant may
not request records under OPRA because he is not a citizen of New Jersey.
N.J.S.A.47:1A-1.
Scheeler v. Burlington Township. page 2-4 (emphasis added).
Therefore, the GRC, the chief State of New Jersey agency charged with interpreting OPRA, has
now made it indisputably clear that New Jersey citizenship is required to have standing to submit
an OPRA request. This is fully consistent with the decisions in Scheeler v. City of Cape May et
aI, Docket No. CPM-L-444-I5 (February 19, 2016) and Lawyers Committee for Civil Rights
Under Law v. Atlantic City Bd. of Educ., Docket No. ATL-L-832-15 (Law Div. Feb. 19,2016)
discussed in Defendant's initial brief and during oral argument.
Also relevant to Defendants' request for the Court to reconsider the October 24, 2016 Order, within
Scheeler v. Burlington Township. the GRC also cited to an additional decision issued by another
Superior Court Judge in Sussex County holding an out-of-state requester did not have standing to
submit OPRA requests. See Croker Cert., ~ 5, Ex. D. That Order, entered by the Honorable
Stephan C. Hansbury, Pl.Ch. on September 20,2016, was also unavailable at the time Defendants
filed their responsive papers on August 18, 2016. In relevant part, that Order provides:
Defendant. as a resident of Nevada and not a citizen of New Jersey. may not
serve any requests upon the Township of Wantage or its officers, employees or
agents seeking access to governmental records under the Open Public Records
Act, N.J.S.A. 47:1A-l, or common law as he is not a citizen of the State of New
Jersey.
Township of Wantage v. Thomas Caggiano, Docket No. SSX-C-21-15 (Ch. Div. Aug. 1,2016)
(emphasis added).
As Your Honor will recall, in ruling in favor of Plaintiff in this case, the Court pointed out that
state of the law (as it had been considered by the Court at that time) was somewhat ambiguous
given the conflicting cases issued by other New Jersey Superior Court Judges over the past year,
and relied upon the previously existing guidance from the GRC which appeared to support

Honorable Georgia M. Curio, A.J.S.C.

Peter M. Heimlich v. EIRC and Stephen H. Hoffman
Docket No.: GLO-L-799-16
November 11,2016
Page 6

Plaintiff's position to ultimately find that access should be granted to Plaintiff ambiguities under
OPRA should be resolved in favor of allowing access.
However, unlike what the Court considered and relied upon at the time the Order was issued in
this case, Defendants respectfully submit that the balance of decisional authority has now
definitively shifted in favor of Defendants with the newly issued decisions in Scheeler v.
Burlington Township and Township of Wantage v. Thomas Caggiano, Docket No. SSX-C-21-1S
(Ch, Div, Aug. 1, 2016). Moreover, and perhaps most importantly, the GRC has now removed
any ambiguity from the OPRA playing field by issuing definitive guidance that New Jersey
citizenship is required to have standing to submit an OPRA request. Accordingly, Defendants
respectfully submit that there is ample good cause for the Court to reconsider and reverse the
October 24,2016 Order.
CONCLUSION
Based upon the foregoing, Defendants respectfully request the Court to reconsider the October 24,
2016 Order and vacate same in its entirety; find Plaintiff has no standing to submit OPRA requests
given his lack of New Jersey citizenship; find Defendants did not violate OPRA by denying
Plaintiff's May 27,2016 OPRA request based on his lack of New Jersey citizenship; find Plaintiff
was not entitled to the records requested in his May 27, 2016 OPRA request since he is not a citizen
of New Jersey; find Defendants are not required to pay Plaintiff any prevailing party fees as
originally contemplated by the Court's October 24,2016 Order; and direct that Plaintiff shall be
required to make a contribution towards the Defendants' counsel fees and costs incurred in
defending Plaintiff s allegations.
On behalf of Defendants, we thank Your Honor for Your Honor's continued time and courtesies.
Should Your Honor have any questions or require anything further, please do not hesitate to have
a member of Your Honor's Chambers contact my office.

RTRlBRC
Enc.
cc:
Clerk of the Court (via federal express, w/enc.)
CJ Griffin, Esquire (via federal express, w/enc.)
David Lindenmuth, EIRC Executive Director (via email)

COMEGNO
521 Pleasant
Moorestown,
856.234.4114
856.234.4262

LAW GROUP, P.C.

Valley Avenue
New Jersey 08057
(P)
(f)

Attorneys for Defendants, Educational Information & Resource Center and Stephen H. Hoffman,
in his capacity as Custodian of Records for the Educational Information & Resource Center
BY:

R. TAYLOR RUILOVA, ESQUIRE (NJ Attorney ID: 039892006)

BRANDON R. CROKER, ESQUIRE (NJ Attorney ID: 017902013)

PETER M. HEIMLICH,
Plaintiff,

SUPERIOR COURT OF NEW JERSEY

GLOUCESTER COUNTY
LAW DIVISION, CIVIL PART

v.

DOCKET NO.: GLO-L-779-16

EDUCATIONAL INFORMATION &

RESOURCE CENTER and STEPHEN H.
HOFFMAN, in his capacity as Custodian of
Records for the Educational Information &
Resource Center,

CERTIFICATION OF BRANDON R.
CROKER, ESQUIRE IN SUPPORT OF
DEFENDANTS' NOTICE OF MOTION
FOR RECONSIDERATION OF THE
OCTOBER 24, 2016 ORDER

Defendants.

Brandon R. Croker, being of full age, hereby certifies as follows:

1)

I am an attorney at the Comegno Law Group, P.C., which represents Defendants,

the Educational Information & Resource Center (the "EIRe"),

and Stephen H. Hoffman, in his

capacity as the former Custodian of Records for the EIRC (EIRC and Mr. Hoffman collectively,
"Defendants"),

in connection with the above-captioned

fully familiar with the facts set forth below.

matter. As counsel for Defendants, I am

Accordingly, I submit this Certification in support

of Defendants' Motion for Reconsideration of the October 24,2016 Order.

2)

Attached as Exhibit "A" is a true and correct copy of the October 24, 2016 Order

which we first received from opposing counsel via facsimile on October 28, 2016.

3)

Attached as Exhibit "B" is a true and correct copy of Defendants'

brief filed in opposition to Plaintiff, Peter M. Heimlich's

("Plaintiff'),

initial letter

Verified Complaint and

Order to Show Cause.

4)

Attached as Exhibit "C" is a true and correct copy of the Government Records

Council's September 29, 2016 Final Decision in Harry B. Scheeler, Jr. v. Burlington Township,
Complaint No. 2015-93, which was distributed on October 4, 2016.
5)

Attached as Exhibit "D" is a true and correct copy of the Honorable Stephan C.

Hansbury, PJ.Ch.'s September 20,2016 Order of Judgment in Township of Wantage v. Thomas

Caggiano, Docket No. SSX-C-21-15 eChoDiv. 2016).
I hereby certify that the foregoing statements made by me are true. I am aware that if any
of the foregoing statements made by me are willfully false, I am subject to punishment.

Dated: November 11,2016

EXHIBIT A

10/28/2816

From: 9882864565

15:29

WebFax Tele-Data Solutions

Paye: 1/4

PASHMAN STEJN WALDER

HAYDEN, P.C.
Court Plaza South
21 Main Street. Suite 200
Hackensack, NJ 07601
(201) 488-;8200 - phone

. 1-

FahSttrIi1~'~;;'i;::'f;~:\~"~(;~E0f~
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To:

From:

Re:

R. Taylor Ruilova, Esq.

CJ..Grif4l, Esq.
He!mlich

v, EIRe,

fax;

856-234-4262

Date:

October 28, 2016

et aI.

DocketNo.:.: GLo;t..-i79-16
Pages: 4

.
Teiocopler

.
Operator.

.~:
JQanne

[JPOrIDMeW .

Notes:

-CONFIDENTIALITY NOTETHE INFORMATION CONTAINED IN THlS -TRANSMISSION IS ATTORNEY PRIVILEGED AND CONFIDENTIAL

~F~~~~~~~~:=.~5u!tm~~;E=~~S?~!tI~~~READER
DISTRIQUTION'OR C;OPYlNG OF rms CO~CAnO:-l
IS STRICTLY PROHIBITED, IF YOU HA'VERECEIVBD THIS
~S~S~ON
IN ERROR. PLEASENOTIFv'1.1S IMMEQIATEL Y BY TELEPHONE
TIlE RETURN OF TIlE OR+GINAL DOCUMENTS TO US AT NO COST TO YOU.

so '!'HAT WE'CAN ~GE

FOR

10/26/2016

15:29

From: 9062064565 WebFax

CJ GR~Ff.~N

Tele-Data Solutions

Page: 2/4

Pashrnansteln

Counsel
cgriffin@pashmanstein.com
Direct: 201.270.4930

\'Y~IQ~rfiaydelJJ

October 28, 2016

Via Facsimile & Regular Mall
R. Taylor Ruilova, Esq.
Comegno law Group, p.e.
521 Pleasant Valley Avenue
Moorestown, New Jersey 08057

Re:

Peter M. Heimlich v. Educational Information

Docket No.: GLO~L77916
Our File No. 1749-001

and Resource Center, et al.

Dear Mr. Ruilova:

Enclosed please find a copy of Order entered on October 24. 2016, by the Honorable Georgia
M. Curio, A.J.~.C., ln.ccnnectlcn with the above matter.
Please be guided accordingly.

a GRIFFIN
CJG:jj
Enclosure

Court Plaza South

21 Main Street, Suite 200

Hackensack,NJ07~Ol

Phone: 201.488.8200

Fax:201.488.5556
.www.pashmenstein.corn

From:

9082061565

WebFax

Tele-Data

Solutions

PASBMAN STEIN WALDER HAYDEN

A Professional Corpo.t'8tion
Court Plaza South
21 Main Street, Suite 200
Hackensack, NJ 07601

(201) 488-8200
CJ GRIFFINt ESQ. (#03]422009)

Attorneys for Plaintiff

Peter M. 'HeiDiliCh

PETBRM. HEMLICH,'

SUPERIOR COURT OF NEW JERSEY

LAW DMSION: GLOUCESTER-COUNTY
DocKEt :No;:GLO.:t.-:'179.;;16

Plaintiffs,

v.

CiYil ACtion

EDUCATIONAL INFORMATION &

RESOURCE CENTER-lind 'STEPHEN
H. HOFFMAN:m hls .C!ipaCity as
Custodian of-Reoords fot:fuc .. ..
Educat1oJiit"
& Resource

ORDER

J.nformation

Center,

Defendants.

TIDS MAITER
Hayden,

Ii Professional

having been brought

before the court by Pashman Stein Walder

Corporation. attomeys for Plaintiff Peter M. Heimlich, seeking relief by

way of summary action pursuant to R. 4:67~1(a). and the court having determined that tbis matter
may be commenced by Order to Show Cause as a summary proceeding pursuant to the Open
Public Records Act, N.J.S.A. 41:1A-6. and the Defendants having argued that Plaintiff Iacked
s~ding

based on his residency outside of'the State of New Jersey, and the Court having read the

papers and having heard oral argument on October 13, 2016. and for good cause shown:
IT IS on this

c:2f'1de.y of October.

2016,

ORD.E;REDtb.at p'lain,1iffhas standingto bring this action under OPRA and to file OPRA
requests, despite his residency outside the State of New Jersey; and it is further

Page:

3/4

From:

OlUlE~
of the New

~082061S6S

WebFax

Tele-Dta

Solutions

Page:

that Defendants have unlawfully withheld government records in violation

Jer:sey Public Records Aot. N.J.~.A. 47:1A:l. et se.q.; aIldit is further

ORDERED

that Defendan1s shall grant access to the .records requested" inPlaintiff's May

27J 2016 OP-RA~uestwithin7bU8ine.ss

ORDERED

that Plaintiff

reasonable attorney's fe~~.p~t

da.ys froIU.tb.~'dateofthisOrder;l\lld,it

is a prevailing

~,:further

party entitled to a mandatory award of

to N;J,S.A. 47:1A-6,.

Tho Parties shall a~pt

to amicably

resolve the amount of attorney's fees. If the Parties are unable to reach an agreement-,Plaintiff
may file a fee ~ppIioation; 'and it is further

ORDERED that.a copy oftbis'Crder, shall 'be served upon ..l)ef'endants within- S days of
its entry.

HON. GEORGIA M, CURIO, A,J.S.C,

[Xl Opposed
( ] Unopposed

4/4

EXHIBITB

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MOORESTOWN, N,J 08057

888.313.4332
856.234.4114

R. T AYLOR RUlLOVA, ESQUIRE

MEMBER NJ AND PA BARS

856.234.4262

FAX

CO MEGNOLAW,COM

August 17, 2016

VIA FEDERAL EXPRESS
Honorable Georgia M. Curio, A.J.S.C.
Gloucester County Superior Court of New Jersey
1 North Broad Street
Woodbury, New Jersey 08096
RE:

Peter M. Heimlich v. Educational Information & Resource Center ("EIRC") and

Stephen H. Hoffman. in his capacity as Custodian of Records for the EIRe
Docket No.: GLO-L-799-16

Dear Judge Curio:

P1ease be advised that this office represents Defendants, the Educational Information & Resource
Center (the "EIRC"), and Stephen H. Hoffman, in his capacity as the former Custodian of
Records for EIRCl ("Mr. Hoffman") (EIRC and Mr. Hoffman collectively, "Defendants"), in
connection with the above referenced matter commenced by Plaintiff, Peter M. Heimlich
("Plaintiff') .
Plaintiff recently filed a Verified Complaint ("Complaint") and an Order to Show Cause
("OTSC") concerning the Board's denial of Plaintiffs request under the Open Public Records
Act ("OPRA") given his lack of New Jersey citizenship. Please accept this letter brief in lieu of
a more formal submission in response and opposition to Plaintiffs OTSC. The Board's Answer
with Affirmative Defenses to the Complaint is attached hereto and being filed
contemporaneously herewith, along with a Civil Case Information Statement, and a Certification
of Filing and Service.
FACTUAL BACKGROUND
By way of brief background, on May 27, 2016, at 5:47 a.m., Plaintiff submitted an OPRA
request to Mr. Hoffman via e-mail (See Complaint, Exhibit "A"). The signature block of the
OPRA request listed the following as Plaintiffs address: 3630 River Hollow Run, Peachtree
Although Mr. Hoffman was the EIRC Custodian of Records at all times relevant to the instant
matter, he has since retired from his employment with EIRC.
1

Honorable Georgia M. Curio, A.J.S.C.

August 17,2016
Page 2

Comers, GA 30096 (See Complaint, Exhibit "A"). That same date, at I:36 p.m., Mr. Hoffman
responded to Plaintiff's OPRA request, advising the request was denied, given Plaintiff's lack of
New Jersey citizenship. (See Complaint, Exhibit "B"). In relevant part, Mr. Hoffman's e-mail
explained the following to Plaintiff:
Your request has been denied in light of the fact that you are not considered a
"citizen" of the State of New Jersey. More specifically, you indicated an address
on your OPRA Request that is outside the State of New Jersey, and have provided
no evidence that you are a citizen of New Jersey. As such, in accordance with
applicable law, including the decision in Scheeler v. City of Cape May et al,
Docket No. CPM-L-444-15 (February 19,2016) which held that OPRA was only
applicable to citizens of this State (namely New Jersey), your request is denied
since you are not a citizen of New Jersey and do not have standing to submit an
OPRA Request.
(See Complaint, Exhibit "B").
EIRC contends it has fully discharged its obligations with respect to Plaintiff's
and Plaintiff's Complaint and OTSC concerning same should both be denied.

OPRA request,

LEGAL ARGUMENT
As succinctly stated in Mr. Hoffman's responsive e-mail to Plaintiff quoted above, only citizens
of New Jersey have standing to submit OPRA Requests according to the decision in Scheeler v.
City of Cape May et al, Docket No. CPM-L-444-15 (February 19,2016), which is attached as
Exhibit 6 to the Certification of Plaintiffs counsel, CJ Griffin, Esquire dated June 23, 2016
("Griffin Cert.).
This is further made patently clear by a review of OPRA's statutory language found in its very
first section, N.J.S.A. 47:IA-l, explaining
[t]he Legislature finds and declares it to be the public policy of this State that:
government records shall be readily accessible for inspection, copying, or
examination by the citizens of this State[.]
Ibid. (emphasis added).
As OPRA's clear and unambiguous statutory language explicitly states that it is only available to
"citizens of this State," that should be the end of the inquiry. On that note, and as a fundamental
matter, N.J.S.A. 1:1-1 explains that our statutes should be interpreted in accordance with the
meanings of their words. It provides:
In the construction of the laws and statutes of this state, both civil and criminal,
words and phrases shall be read and construed with their context, and shall, unless

Honorable Georgia M. Curio, A.J.S.C.

August 17,2016
Page 3

inconsistent with the manifest intent of the legislature or unless another or

different meaning is expressly indicated, be given their generally accepted
meaning, according to the approved usage of the language. Technical words and
phrases, and words andphrases having a special or accepted meaning in the law,
shall be construed in accordance with such technical or special and accepted
meaning.
[Ibid.]
The primary goal of courts "in construing a statute 'is to discern and effectuate the Legislature's
intent.?' State v. Brannon, 178 N.J. 500, 505 (2004). Courts must "start by considering the plain
language of the statute." State v. Ivory, 124 N.J. 582, 585 (1991). "If the language is clear,
[courts must] interpret the statute consistent with its plain meaning." State v. Lewis, 185 N.J.
363, 369 (2005). Here, it is clear OPRA's unambiguous language explains it is only available
"the citizens of this State [of New Jersey.]" N.J.S.A.47:1A-L
The New Jersey Supreme Court has further discussed the language in N.J.S.A. 47:1A-1,
explaining that
[this section], though it appears at the beginning, . .. is neither a preface nor a
preamble. It has no telltale "whereas" clauses that often appear in a preamble. It
appears after OPRA's enactment clause, making the provision part of the body of
the law.
Burnett v. Cty. of Bergen, 198 N.J. 408, 422-23 (2009).
Elsewhere in the Burnett decision, the.New Jersey Supreme Court again stated "OPRA provides
for ready access to government records by the citizens of this State." ld. at 421 (emphasis
added). Notably, other New Jersey Supreme Court decisions also evidence that OPRA only
applies to citizens of New Jersey. See Mason v. City of Hoboken, 196 N.J. 51, 64-65 (2008)
("OPRA.dec1ares that 'government records shall be readily accessible for inspection, copying, or
examination by the citizens of this State[.]'" (emphasis added)); see also Educ. Law Ctr. v. New
Jersey Dep't of Educ., 198 N.J. 274,283 (2009) ("Our well-established common law protection
of a citizen's right to access, ... , is complemented by the Legislature's enactment of OPRA,
which was intended to enhance the citizenry's statutory rights to government maintained
records." (emphasis added). Moreover, as is often quoted, OPRA was enacted in attempt to
"ensure an informed citizenry and to minimize the evils inherent in a secluded process." Asbury
Park Press v. Ocean Cty. Prosecutor's Office, 374 N.J. Super. 312, 329 (Law. Div. 2004).
As noted above, this is extensively explained in Scheeler v. City of Cape May et al, Docket No.
CPM-L-444-15 (February 19, 2016) (See Griffin Cert., Exhibit 6) ("Scheeler v. Cape May
Decision") written by the Honorable Nelson C. Johnson, lS.C. ("Judge Johnson"), which Mr.
Hoffman cited to in his denial of Plaintiffs OPRA request. In that decision, Judge Johnson
explained it was clear that the Legislature'S intentions were for OPRA requests to only be

Honorable Georgia M. Curio, A.J.S.C.

August 17,2016
Page 4

available to citizens of New Jersey, and not to non-taxpaying, non-citizens who do not come to
the state of New Jersey, nor assume any of the responsibilities or incur any of the obligations of
citizens of New Jersey. Scheeler v. Cape May Decision, page 1. He explained non-New Jersey
residents, who do not pay taxes within New Jersey, should not be able to access government
records and reap the benefits of similarly situated citizens, especially considering they are not
affected by New Jersey's political process. Id. at page 7. On that note, he stated
OPRA is the progeny of the former [Right to Know Law ("RTKL")], the purpose
of which was to illuminate and avoid secrecy in government affairs. As such, the
benefits of the RTKL and OPRA are properly given to those who not only "foot
the bill" for such benefits but who also are directly affected by the very political
processes the aforementioned legislation was enacted to protect and serve.
Id. at 5.
In the Scheeler v. Cape May Decision, Judge Johnson also cited to the United States Supreme
Court decision in McBurney v. Young, 133 S. Ct. 1709, 185 L. Ed. 2d 758 (2013), upholding a
denial of access to non-citizens under the Virginia Freedom of Information Act, which is similar
to OPRA, explaining it did not violate the Privileges and Immunities Clause of the Constitution:
Under the Privileges and Immunities Clause, "[t]he Citizens of each State [are]
entitled to all Privileges and Immunities of Citizens in the several States." U.S.
Const., Art. IV, 2, cl. 1. We have said that "[t]he object of the Privileges and
Immunities Clause is to 'strongly ... constitute the citizens of the United States
[as] one people,' by 'plac[ing] the citizens of each State upon the same footing
with citizens of other States, so far as the advantages resulting from citizenship in
those States are concerned.' " Lunding v. New York Tax Appeals Tribunal, 522
U.S. 287, 296, 118 S.Ct. 766, 139 L.Ed.2d 717 (1998) (quoting Paul v. Virginia, 8
Wall. 168, 180, 19 L.Ed. 357 (1869. This does not mean, we have cautioned,
that "state citizenship or residency may never be used by a State to distinguish
among persons." Baldwin v. Fish and Game Comm'n of Mont. , 436 U.S. 371, 383,
98 S.Ct. 1852, 56 L.Ed.2d 354 (1978). "Nor must a State always apply all its laws
or all its services equally to anyone, resident or nonresident, who may request it
so to do." Ibid Rather, we have long held that the Privileges and Immunities
Clause protects only those privileges and immunities that are "fundamental."
* 1715 See, e.g., id., at 382, 388, 98 S.Ct. 1852.
Id. at 1714-15, 758. And continuing:
... we reject petitioners' sweeping claim that the challenged provision of the
Virginia FOIA violates the Privileges and Immunities Clause because it denies
them the right to access public information on equal terms with citizens of the
Commonwealth. We cannot agree that the Privileges and Immunities Clause
covers this broad right.

Honorable Georgia M. Curio, A.J.S.C.

August 17,2016
Page 5

This Court has repeatedly made clear that there is no constitutional right to obtain
all the information provided by FOIA laws
Id. at 1718,758.
Judge Johnson explained the "[Privileges and Immunities Clause of the Constitution], United
States and New Jersey Supreme Court jurisprudence, and the Legislative history [ofOPRA] [led]
[him] to conclude that [the non-resident Plaintiff in that case was] not someone the Legislature
had in mind when it adopted OPRA." Scheeler v. Cape May Decision at page 7.
As Judge Johnson further noted,
[i]ftheintent of the Legislature was to abrogate the RTKL's standing requirement
... , then the Legislative findings and declarations portion of OPRA, along with
the transcript of the public hearing to discuss the enactment of OPRA, would have
clearly stated that was the change in policy.
Jpid. He also explained that, if the Legislature had intended to make
records accessible both to citizens of this State as well as any person, including
non-citizens, then the first sentence of OPRA in N.J.S.A. 47:1A-l might well
have stated that: The Legislature finds and declares it to be the public policy of
this State that: government records shall be readily accessible for inspection,
copying, or examination by all citizens of this State, and any person, including
non-citizens. That language is not the law.
Ibid (emphasis in original). Judge Johnson continued, explaining that given OPRA's purposeful
use of the limiting phrase "citizens of this State,"
Plaintiff's argument that "any person" broadens the scope of access under OPRA
to non-citizens does not conform to the clear Legislative intent. Contrary to
Plaintiff's interpretation of OPRA, OPRA was enacted to expand the scope of
accessible government records, not to expand the scope of those who had access
to these records.
Ibid.
Based on the Plaintiff's lack of New Jersey citizenship there, Judge Johnson concluded the
Scheeler v. Cape May Decision by dismissing the complaint, stating the Plaintiff there had "no
rights of access to [public] records under either the OPRA or the New Jersey common law." Id.
at page 11. The same holds true for the Plaintiff domiciled in Georgia in the instant matter.
Notably, the same result was reached in another decision penned by Judge Johnson, Lawyers
Committee for Civil Rights Under Law v. Atlantic City Bd. ofEduc., Docket No. ATL-L-832-15

Honorable Georgia M. Curio, A.J.S.C.

August 17,2016
Page 6

(Law Div. Feb. 19,2016) (which is attached hereto for the Court's convenience as Exhibit "1").
There Judge Johnson similarly denied access based on the lack of New Jersey citizenship.
While Defendants acknowledge that Plaintiff references certain contrary materials, same are only
persuasive and are non-binding on this Court. In addition, Defendants contend those materials
are legally flawed and inconsistent with OPRA's language and the Legislative intent for the
reasons set forth above. As such, Defendants submit that this matter should be summarily
dismissed.
Defendants also understand that this issue has been appealed to the Appellate Division, who has
not yet issued an opinion or addressed it. Given the Appellate tribunal will be addressing this
issue and issuing binding authority, if the Court is not prepared to uphold the denial and dismiss
this matter based on the reasons set forth above, in the alternative to dismissing this matter
outright, Defendants respectfully contend it may make sense to hold a decision in this matter in
abeyance until after the Appellate Division has definitively weighed in.
In the alternative, if, for some reason, the Court is inclined to permit Plaintiff to continue with
this lawsuit and/or compel the production of records, Defendants contend Plaintiffs request for
prevailing party fees should nevertheless be denied. It would be inappropriate and unfair for
Plaintiffs to be awarded prevailing party status, especially given Defendants' entirely reasonable
course of action in the presence of the current state of applicable authority on this issue.
CONCLUSION
Based upon the foregoing, Defendants respectfully submit that Plaintiff's OPRA request was
appropriately denied, consistent with OPRA and other relevant legal authority. Accordingly,
Defendants respectfully request that the denial be upheld, and Plaintiff's OTSC be denied and
this matter dismissed, with prejudice.
On behalf of Defendants, we thank Your Honor for your consideration and courtesies. Should
Your Honor have any questions or require anything further, please do not hesitate to contact me.

RTRJBRC
c:
Clerk of the Court, Gloucester County Superior Court (via federal express)
CJ Griffin, Esquire (via federal express)
David Lindenmuth, EIRC Executive Director (via email)

EXHIBITC

DEPARTMENT OF COMMUNITY AFFAIRS

101 SOUTH BROAD STREET

CHRIS CHRISTIE
GOwrHor

PO Box 819
NJ 08625-0819

CHARLES A. RICHMAN
Commissioner

1'RNTON,

KIM GUADAGNO
Lt. GoveYIIQr

FINAL DECISION
September 29,2016 Government Records Council Meeting
Harry B. Scheeler, Jr.
Complainant

Complaint No. 2015-93

v.
Burlington Township (Burlington)
Custodian of Record
At the September 29,2016 public meeting, the Government Records Council ("Council")
considered the April 19, 2016 Findings and Recommendations of the Executive Director and all
related documentation submitted by the parties. The Council voted unanimously to adopt the
entirety of said findings and recommendations. The Council, therefore, finds that the Custodian
has met his burden of proof that he lawfully denied access to the Complainant's OPRA request.
N.J.S.A. 47:IA-6. The Complainant may not request records under OPRA because he is not a
citizen of New Jersey. N.J.S.A. 47:1A-1.
This is the final administrative determination in this matter. Any further review should be
pursued in the Appellate Division of the Superior Court of New Jersey within forty-five (45)
days. Information about the appeals process can be obtained from the Appellate Division Clerk's
Office, Hughes Justice Complex, 25 W. Market St., PO Box 006, Trenton, NJ 08625-0006.
Proper service of submissions pursuant to any appeal is to be made to the Council in care of the
Executive Director at the State of New Jersey Government Records Council, 101 South Broad
Street, PO Box 819, Trenton, NJ 08625-0819.
Final Decision Rendered by the
Government Records Council
On The 29th Day of September, 2016
Robin Berg Tabakin, Esq., Chair
Government Records Council
I attest the foregoing is a true and accurate record of the Government Records Council.
Steven Ritardi, Esq., Secretary
Government Records Council
Decision Distribution Date: October 4, 2016

New Jersey is an Equal Opportunity Employer Printed on Recycled paper and Recyclable

STATE OF NEW JERSEY

GOVERNMENT RECORDS COUNCIL
Findings and Recommendations of the Executive Director
September 27,2016 Council Meeting
Harry B. Scheeler, Jr.l
Complainant

GRC Complaint No. 2015-93

v.
Burlington Township (Burlingtonj'
Custodial Agency
Records Relevantto Complaint:
twp[.] solicitor in 2014."

Via E-Mail in PDF Format: "[A] 11legal bills received for the

Custodian of Record: Anthony 1. Carnivale, Jr.

Request Received by Custodian: March 30, 201S
Response Made by Custodian: March 30, 201S
GRC Complaint Received: April 6, 201S
Background3
Request and Response:
On March 30, 20 IS, the Complainant submitted an Open Public Records Act ("OPRA")
request to the Custodian seeking the above-mentioned records. That same day, the Custodian
responded in writing, denying the Complainant's OPRA request pursuant to N.1.S.A. 47:1A-I
because the Complaint was not a citizen of the State of New Jersey.
Denial of Access Complaint:
On April 6, 20 IS, the Complainant filed a Denial of Access Complaint with the
Government Records Council ("ORC"). The Complainant, a resident of the State of North
Carolina, first referenced the ORC's "OPRA Custodian's handbook" [sic] which states that
"[a]lthough OPRA specifically references 'citizens of this State' (N.1.S.A. 47:IA-I), the
Attorney General's Office advises that OPRA does not prohibit access to residents of other
states." N.J. Gov't Records Council, Handbook for Records Custodians, (Sth ed. Jan. 2011), at 7.
The Complainant added further that neither the GRC nor the New Jersey courts has ruled that
OPRA applies only to New Jersey citizens since the law's inception.
No representation listed on record.
Represented by David M. Serlin, Esq. (Moorestown, NJ).
3 The parties may have submitted
additional correspondence or made additional statements/assertions in the
submissions identified herein. However, the Council includes in the Findings and Recommendations' of the
Executive Director the submissions necessary and relevant for the adjudication of this complaint.
1

Harry B. Scheeler, Jr. v. Burlington Township (Burlington). 2015-93 - Findings and Recommendations

of the Executive Director

The Complainant requested that the GRC find that the Custodian unlawfully denied
access to his OPRA request and issue an order for release of the requested records. Furthermore,
the Complainant also requests that the GRC fine the Custodian for a knowing and willful
violation of OPRA.
Statement of Information:
On April 17, 2015, the Custodian filed a Statement of Information ("SOl"). The
Custodian certified that he received the Complainant's OPRA request on March 30, 2015, and
responded in writing that same day.
The Custodian maintained his position that the OPRA request was properly denied
because the requestor is not a New Jersey citizen, pursuant to N.J.S.A. 47: lA-I.
Analysis
OPRA provides that government records made, maintained, kept on file, or received by a
public agency in the course of its official business are subject to public access unless otherwise
exempt. N.J.S.A. 47:IA-1.1. A custodian must release all records responsive to an OPRA request
"with certain exceptions." N.J.S.A. 47:IA-1. Additionally, OPRA places the burden on a
custodian to prove that a denial of access to records is lawful pursuant to N.J.S.A. 47:1A-6.
The issue in this matter is whether N.J.S.A. 47:IA-l limits OPRA access to citizens of
New Jersey. Specifically, the ORC must decide whether the phrase "citizens of this State" in
N.J.S.A. 47:1A-I is interpreted to exclude out-of-state requestors from OPRA.
In S. Jersey Pub. Co. v. N.J. Expressway Auth., 124 N.J. 478, 489 (1991), the New Jersey
Supreme Court held that a requestor "need only be a citizen of the. State to obtain access to
public records" under the Right to Know Law ("RTKL"). The Legislature left unchanged the
relevant language in N.J.S.A. 47:IA-l when it amended the RTKL in enacting OPRA. N.J.S.A.
I: I-4 provides that "[r]evised Statutes, not inconsistent with those of prior laws . . . shall be
construed as a continuation of such prior laws."
Notably, when Senators Kenny and Kyrilos introduced Senate Bill No. 351 ("S-351") on
January 11, 2000, the proposed Legislative findings and declarations struck the phrase "citizens
of this State" and read, in pertinent part: "the Legislature finds and declares it to be the public
policy of this State that public records shall be readily accessible for examination by members of
the public." That proposal was intentionally made to "[broaden] the scope of public policy
regarding availability ofpubJic information to incorporate any member of the public and not just
citizens. Currently, the right to information access exits for citizens alone." NJ Assembly State
Government Committee Statement on Assembly No. 1309, p. 2 (March 6, 2000); see also
Assembly Judiciary Committee Statement to Assembly No. 1309, p. I (December 6, 2001).
However, the Legislature did not adopt S-351. Rather, it was Senate Bill No. 866, which stated
"the Legislature finds and declares it to be the public policy of this State that government records
shall be readily accessible for inspection, copying, or examination by the citizens of this State ..
Harry B. Scheeler, Jr. v. Burlington Township (Burlington), 2015-93 - Findings and Recommendations

of the Executive Director

", that ultimately became OPRA. Moreover, in Burnett v. County of Bergen. et aI., .198 N.J. 408,
423 (2009), the Court found that the Legislative findings and declarations ofN.1.S.A. 47:1A-l is
part of the substantive body of' law, rather than a non-operational preamble. Thus, the
Legislature intended for government records to be accessible to citizens of the State.
In 2013, the Supreme Court of the United States upheld Virginia's limitation of its
Freedom of Information Act ("FOIA") to citizens of Virginia. McBurney v. Young, 133 S.Ct.
1709, 1720 (2013). The Court granted certiorari in McBurney to address conflict among the
Circuit Courts as to whether state freedom of information laws that are available only to the
citizens of the state violate the Privileges and Immunities Clause of the United States
Constitution. Id. at 1714. Before the Fourth Circuit, in McBurney v. Young, 667 F.3d 454, 467468 (4th Cir. 2012), upheld Virginia's FOIA limitation to state citizens, the Third Circuit struck
down a similar provision of Delaware's FOJA, in Lee v. Minner, 458 F.3d 194, 198 (3d Cir.
2006), as a violation of the Privileges and Immunities Clause of the United States Constitution.
The Supreme Court, noting that several other States, including New Jersey, have enacted
freedom of information laws that are available only to their citizens, abrogated the Third
Circuit's decision in Lee and held that such laws do not violate the Privileges and Immunities
Clause because "there is no constitutional right to obtain all the information provided by FOIA
laws." McBurney, supra, 133 S.Ct. at 1714, 1718-19 (2013).

Since the Court issued its opinion in McBurney, New Jersey courts have addressed
whether aPRA permits requests from persons out-of-state. See Township of Wantage v.
Thomas J. Caggiano, Docket No. SSX-C-21-15 (Ch. Div. Aug. 1, 2016) (holding out-of-state
requesters have no standing to submit OPRA requests); Scheeler v. Ocean County Prosecutor's
Office, et al., Docket No. OCN-L-3295-15 (Law Div. Apr. 14,2016) (holding OPRA permits
out-of-state requests); Lawyers Committee For Civil Rights Under Law v. Atlantic City Board of
Education, et al., Docket No. ATL-L-832-15 (Law Div. Feb. 19, 2016)(holding OPRA does not
permit out-of-state requests), appeal pending A-2704-15; Scheeler v. City of Cape May, et ai,
Docket No. CPM-L-444-15 (Law Div. Feb. 19,2016) (holding OPRA does not permit out-ofstate requests), appeal pending A-2716-15; and Scheeler v. Atlantic County Municipal Joint
Insurance Fund, et al., Docket No. BUR-L-990-J5 (Law Div, Oct. 2, 2015) (tentative decision
holding OPRA permits out-of-state requests), appeal pending A-2092-1 5.
A plain reading ofN.1.S.A. 47:1A-l demonstrates that bPRA is intended only for New
Jersey citizens. The Supreme Court held that the precatory language in N.J.S.A. 47:1A-l
containing "citizens of this State" is part of the substantive body of the law and not a descriptive
preamble. Burnett v. Cnty. of Bergen, et aI, 198 N.J. 408, 423 (2009). Moreover, even if the
phrase "citizens of this State" were ambiguous, the legislative history favors the conclusion that
OPRA did not expand access to out-of-state requestors. Therefore, the ORC finds that OPRA
was meant to apply only to the citizens of New Jersey.
Although the Complainant argues that the GRC has never held that aPRA applies only to
New Jersey citizens, "an administrative agency has no obligation to follow a prior agency
decision that incorrectly interprets a statute." Moore v. Police Ret. Sys. Bd. of Trs., 382 N.J.
Super. 347,359 (App.Div. 2006), rev'd on other grounds sub nom Patterson v. Bd. of Trustees,
194 N.J. 29 (2008). Moreover, that the ORC expanded access on a consistent basis prior to this
Harry B. Scheeler, Jr. v . Burlington Township (Burlington), 201593-

Findings and Recommendations

of the Executive Director

complaint is irrelevant to ascertaining an accurate interpretation of the law. Evans v. Atlantic

CityBd. of Educ., 404 N.]. Super. 87,93 n. I (App.Div. 2008). "The scope of [a] statute cannot
be expanded through a ... past or present lax attitude toward the legislative mandate." Id. The
ORC is also now guided by the United States Supreme Court decision in McBurney.
The Complainant relies on the ORC's training guides and materials. for custodians to
support his argument that the out-of-state requesters may avail themselves of OPRA.
Specifically, he refers to the GRC's handbook, which cites a 2002 Deputy Attorney General
("DAG") memorandum to the ORC, interpreting N.1.S.A. 47:1A-I as not prohibiting out-of-state
requestors from access to OPRA. This argument is not persuasive because it fails to take into
consideration that the DAO memorandum was issued in 2002, several years before McBurney
and the other court decisions referenced above. Moreover, only "formal opinions" issued by the
Attorney General have precedential value. Weiner v. Cnty. of Essex, 262 N.J. Super. 270,281 n.
2 (Law Div.1992) (citing Preface to Attorney General's Opinions (1949 & 1950)). Whereas,
informal Attorney General opinions and memorandum to agencies are akin to legal advice to a
client, which can be accepted or rejected by the client. Bd. of Educ. of West Windsor-Plainsboro
Reg'l Sch. Dist., Mercer Cnty. v. Bd. of Educ. of Twp. of Delran, Burlington Cnty., 361 N.J.
Super. 488,494 (App. Div. 2003).
Here, there is no evidence in the record demonstrating that the memorandum was
approved and published as a formal opinion of the Attorney General. Thus, the GRC is not
beholden to the DAG memorandum in perpetuity. "An initial agency interpretation is not
instantly carved in stone. On the contrary, the agency ... must consider varying interpretations
and the wisdom of its policy on a continuing basis." Glukowsky v. Equity One, Inc., 180 N.J. 49,
65-66 (2004) (citing Chevron U.S.A" Inc. v. Natural Res. Def. Council, 467 U.S. 837, 863-64
(I 984)). In light of the relevant court decisions issued subsequent to the DAG's 2002
memorandum, the GRC elects to reconsider its interpretation ofN.1.S.A. 47:1A-l, as set forth
above.
Therefore, the Custodian has met his burden of proof that he lawfully denied access to the
Complainant's aPRA request. N.J.S.A. 47:1A-6. The Complainant may not request records
under OPRA because he is not a citizen of New Jersey. N.J.S.A. 47:1A-I.
Conclusions and Recommendations
The Executive Director respectfully recommends the Council find that the Custodian has
met his burden of proof that he lawfully denied access to the Complainant's OPRA request.
N.J.S.A. 47:1A-6. The Complainant may not request records under aPRA because he is not a
citizen of New Jersey. N.1.S.A. 47:1A-1.
Prepared By: Samuel A. Rosado
Staff Attorney
April 19,20164
The Complaint was originally prepared for the Council's adjudication at the April 26, 2016 meeting, but the
Council tabled the matter at that time on the advice of legal counsel.
4

Harry B. Scheeler, Jr. v. Burlington Township (Burlington), 2015-93 - Findings and Recommendations

of the Executive Director

EXHIBITD

FilED
SEP 202016
PREPARED BY THE COURT:

SUPERIORCOURT OF NEW JERSEY

CHANCERYDIVISION: GENERALEQUITY
PART-SUSSEXCOUNTY
Docket No. SSX-C-21-1S

TOWNSHIP OF WANTAGE,
Plaintiff,

vs.

Civil Action

THOMAS CAGGIANO,
ORDER OF JUDGMENT
Defendant.

THIS MATTER having come before the Court for trial on September 14, 2016;
plaintiff being represented by Weiner Lesniak, lLP (Steven R. Tombalakian, Esq.
appearing);

and defendant

pro se, THOMAS CAGGIANO failing to appear; and the Court,

after hearing testimony and having considered the evidence of plaintiff; and with good
cause s.hown;
IT IS on this

zo=

day of September, 2016;

ORDERED, as follows:
1.

Defendant, as a resident of Nevada and not a citizen of New Jersey, may not

serve any requests upon the Township of Wantage or its officers, employees or agents
seeking access to governmental records under the Open Public Records Act, N.J.S.A: 47:1A1, or common law as he is not a citizen of the State of New Jersey ..
2.

The Township of Wantage, in its discretion, may respond to requests for

government records by defendant provided, however, such requests are made on forms
approved by the Government Records Administration

for such purpose and which clearly

2
1.1, et seq. Documents submitted

requests shall be
The co~rt

by defendant are not "government

J;;-6mi~ed"q-;~;'1~
~~.~i~luests
~i~~ ~~~~.~~ ~
1, ~ _

..

','

~:ll
~

.......

: .!

~I
~~

!~ U

II

All such

may be presented via e-mail.

c:;y of thls ~rA:~1\upon the 'parties to this action.

l ,.

\.:. '

documents.

EPHAN C. HANSBURY,

PJ. Ch.

COMEGNO
521 Pleasant
Moorestown,
856.234.4114
856.234.4262

LAW GROUP, P.C.

Valley Avenue
New Jersey 08057
(P)

(f)

Attorneys for Defendants, Educational Information & Resource Center and Stephen H. Hoffman,
in his capacity as Custodian of Records for the Educational Information & Resource Center
BY:

R. TAYLOR RUILOVA, ESQUIRE (N] Attorney ID: 039892006)

BRANDON R. CROKER, ESQUIRE (N] Attorney ID: 017902013)

PETER M. HEIMLICH,
Plaintiff,

SUPERIOR COURT OF NEW JERSEY

GLOUCESTER COUNTY
LAW DIVISION, CIVIL PART

v.

DOCKET NO.: GLO-L-779-16

EDUCATIONAL INFORMATION &

RESOURCE CENTER and STEPHEN H.
HOFFMAN, in his capacity as Custodian of
Records for the Educational Information &
Resource Center,

CERTIFICATION OF SERVICE

Defendants.

I, the undersigned, herby certify that on 11til day of November, 2016, I caused Defendants'
Motion for Reconsideration,

along with the Certification

support of Plaintiff's Motion for Reconsideration,

of Brandon R. Croker, Esquire in

Letter Brief, proposed Form of Order, and this

Certificate of Service, to be served via Federal Express on:

C] Griffin, Esquire
Pashman Stein Walder Hayden
A Professional Corporation
Court Plaza South
21 Main Street, Suite 200
Hackensack, NJ 07601

Date: November 11,2016

COMEGNO
521 Pleasant
Moorestown,
856.234.4114
856.234.4262

LAW GROUP, P.C.

Valley Avenue
New Jersey 08057
(P)
(t)

Attorneys for Defendants, Educational Information & Resource Center and Stephen H. Hoffman,
in his capacity as Custodian of Records for the Educational Information & Resource Center
BY:

R. TAYLOR RUILOVA, ESQUIRE (NJ Attorney ID: 039892006)

BRANDON R. CROKER, ESQUIRE (NJ Attorney ID: 017902013)

PETER M. HEIMLICH,
Plaintiff,

SUPERIOR COURT OF NEW JERSEY

GLOUCESTER COUNTY
LAW DIVISION, CIVIL PART

v.

DOCKET NO.: GLO-L-779-16

EDUCATIONAL INFORMATION &

RESOURCE CENTER and STEPHEN H.
HOFFMAN, in his capacity as Custodian of
Records for the Educational Information &
Resource Center,

ORDER

Defendants.

THIS
Reconsideration

MATTER

being

brought

filed by Defendants,

before

the

the Educational

Court

based

Information

on

the

Motion

& Resource

for

Center (the

"EIRC"), and Stephen H. Hoffman, in his capacity as the former Custodian of Records for the
EIRC ("Mr. Hoffman")

(EIRC and Mr. Hoffman collectively,

"Defendants");

and the Court

having considered all papers submitted, and oral argument, if any; and good cause being shown;
IT

IS

ON

THIS

___

day

of _____

, 2016,

ORDERED

AND

AJUDGED as follows:
1.

ORDERED the Court's October 24, 2016 Order entered in this matter is hereby
vacated in its entirety and superseded by this Order; and it is further

2.

ORDERED Plaintiff, Peter M. Heimlich ("Plaintiff'),

has no standing to submit

OPRA requests given his lack of New Jersey citizenship; and it is further

3.

ORDERED Defendants did not violate OPRA by denying Plaintiffs

May 27,

2016 OPRA request based on his lack of New Jersey citizenship; and it is further

4.

ORDERED Plaintiff was not entitled to the records requested in his May 27,
2016 OPRA request since he is not a citizen of New Jersey; and it is further

5.

ORDERED Defendants shall not be required to pay Plaintiff any prevailing party
fees as originally contemplated by the Court's October 24, 2016 Order; and it is
further

6.

ORDERED Plaintiff shall be required to contribute

Defendants'

towards the

counsel fees and costs incurred in defending Plaintiff's allegations;

and it is further

7.

ORDERED that a copy of this Order shall be served upon all parties within
_____

days of the date of this Order.

Honorable Georgia M. Curio, A.J.S.C.

Motion was:
__ opposed
__ unopposed